1ST TIME MISDEMEANOR CONVICTIONS CAN NOW BE SEALED

On September 1, 2015 the Texas Legislature passed a new law, SB 1902, regarding nondisclosures, or “sealing”. This new law changes the Texas nondisclosure statute drastically. Now many more defendants will be eligible to seal their cases.

State legislatures, including the Texas Legislature, are beginning to see the necessity of making it easier for those guilty of minor offenses to obtain employment so they can contribute to society as law-abiding, job-holding, tax-paying citizens and not penalized for the rest of their lives for one mistake made years in the past. The “Statement of Intent” for SB 1902 reflects this new mindset:

“ …giving reformed offenders a second chance and increasing the workforce with individuals who are no longer limited by their minor criminal histories.”

Below for our clients we have summarized the highlights of this new law. But as sifting through the criminal code and statutory provisions can be complex, call our office at (832) 328-0600 to find out if your case is eligible for sealing under the new law:

  • The new law affects ONLY MISDEMEANORS. Nothing has been changed with regard to felonies.
  • The new law affects only misdemeanor offenses COMMITTED ON OR AFTER SEPTEMBER 1, 2015
  • Not all misdemeanor convictions are eligible for sealing under the new law; call our office.
  • To qualify to seal a misdemeanor conviction it must be a “1st time guilty plea” – that is, you must have no PRIORS that you have pleaded guilty to including no prior case that has been sealed. (If you do have priors, you may still be able to seal your misdemeanor after a deferred.) [“Conviction” means you did jail time or straight probation.]
  • Felony convictions remain ineligible for sealing. Felony deferreds can still be sealed after a 5-year waiting period, assuming all other qualifications are met.
  • Under the new law AUTOMATIC SEALING is now available for:
    • eligible misdemeanors
    • dismissed after deferred adjudication
    • that have no waiting period to seal.
  • As with the old law, you are ineligible if you plead guilty to any new case (except for fine-only traffic offenses ) AFTER pleading guilty to the case you are wanting to seal.
  • Entities able to obtain information on a case subject to a Nondisclosure Order remain the same with the addition of:
    • Banking and financial institutions
    • Critical infrastructure companies where applicants would handle hazardous materials
    • For a longer list of entities that can view sealed records information click here.
  • The list of offenses ineligible for sealing remains the same: DWI’s, liquor violation charges, family violence, serious cases of violence, many sexual offenses and offenses involving children.

Q&A regarding the new nondisclosure law:

1. Is there any difference in the new law for convictions that were received after straight probation vs. those received after jail time?

Yes, those who do jail time must wait 2 years before they can have their case sealed. All other eligibility requirements must be met.

Under §411.0735, a 1st time offender is eligible for nondisclosure after doing jail time, but he must wait 2 years from the date of release from confinement. Again, the statute is for “1st-time offenders”: any prior convictions or deferreds will disqualify.

2. If I served jail time as a term and condition of probation do I have to wait the 2 years?

No. Under §411.073, a 1st-time offender is eligible for nondisclosure after straight probation (non-deferred). (Any prior convictions or deferreds will disqualify.) This section applies to anyone who was under community supervision, even if he or she also served jail time through shock probation or as a term and condition of probation. (The offense itself must still be eligible for nondisclosure.)

3. What 1st time misdemeanor convictions cannot be sealed under the new law?

Yonvictions precluded from being sealed include DWI’s and Liquor Violation offenses such as selling alcohol to minors. (that is, any misdemeanors under Alcoholic Beverage Code §106.041 or Penal Code §§49.04.), Family Violence offenses, and Organized Crime misdemeanors.

4. If I have a waiting period when does the 2-year clock start ticking?

For those misdemeanor offenses requiring a 2-year waiting period – from the date you receive your Order of Discharge and Dismissal.

For eligible misdemeanor 1st-time jail convictions there is a 2 year waiting period and this starts from the date you are released from confinement.

5. Should I take straight probation or deferred if my attorney can get me either?

It is better to take a deferred over straight probation as with a deferred you may qualify for automatic sealing. (For felonies eligible for sealing, the waiting period is still 5 years from the Order of Discharge and Dismissal. Only felony deferreds can be sealed.)

6. What happens if I plead guilty to any case (excluding fine-only traffic offenses) while I am on probation or during any waiting period?

You are disqualified from sealing any case, ever.

7. What prior convictions will prevent me from sealing any case, ever?

Any conviction under Penal Code §§19.02, 19.03, 20.04, 20A.02, 20A.03, 22.04, 22.041, 25.07, 25.072, and 42.072. This list includes family violence, offenses of serious violence, any offense requiring registration as a sex offender, and certain offenses involving children. For more information call our office.

8. What will prior convictions or deferreds knock me out of?

Automatic sealing and sealing after jail time or straight probation; ie, if you have pleaded guilty to any charge in the past you cannot seal your misdemeanor conviction under the new law. (Fine-only traffic offenses excluded.) You may still be eligible to seal your most recent deferred with an attorney; call our office.

9. What are the waiting periods?

Except for automatic nondisclosures, a person can seal their case only after any applicable waiting period has run—five years for felonies, two years for certain misdemeanors, and immediately for all other misdemeanors, or two years from release from confinement.

10. Which misdemeanors have a 2-year waiting period to seal?

Misdemeanors under Chapters 20, 21, 22, 25, 42, 43, and 46 of the Penal Code. These include many misdemeanors of violence, sexual offenses, and weapons. Call our office to find out if your offense carries a 2-year waiting period.

Automatic Sealing

For your case to be eligible for automatic sealing:

  1. It must be a misdemeanor.
  2. It must have no waiting period for sealing.
  3. It must have been DISMISSED via a deferred adjudication.
  4. You must have no PRIOR cases on your record that you pleaded guilty to before taking the deferred.
  5. You must have no SUBSEQUENT cases on your record that you pleaded guilty to after taking the deferred.

Only those misdemeanors DISMISSED after a deferred and with no waiting period are eligible for automatic sealing. Misdemeanors CONVICTIONS eligible for sealing under the new law are not eligible for automatic sealing.

Under what conditions is automatic sealing available?

Under the new law automatic sealing is available only for those who complete an eligible misdemeanor deferred. The judge is now required to automatically grant an Order of Nondisclosure at the time of the signing of the Order of Discharge and Dismissal of the eligible deferred. This means that you do not have to hire an attorney to prepare and file a Petition for Nondisclosure and pay filing fees. (Although there may be administrative fees due.)

Once the courts work out the details of exactly how automatic sealing will be handled, this will greatly streamline the process for those who in the past would have had to hire an attorney, pay filing fees, go to court and have a hearing to have their cases sealed.

Can all misdemeanor deferreds eligible for sealing be automatically sealed?

No. The misdemeanors ineligible to receive an automatic nondisclosure are those which have a two-year waiting period (from the date the judge signs the Order of Discharge and Dismissal) to seal.

What other new requirements must be met for automatic nondisclosure?

  • You can have no PRIOR cases that you pleaded guilty to – whether a conviction or a deferred. So if you have any prior convictions or deferreds you must hire an attorney to file a petition if you are otherwise eligible.
  • You cannot get automatic nondisclosure until 6 months after you were placed on deferred. So if your deferred probation was 6 months or longer, you will get an automatic nondisclosure immediately upon the judge’s signing of the Order of Discharge and Dismissal. If your deferred lasted less than 6 months you must wait the balance of the 6 months before your case will be automatically sealed.
  • Under the new law the burden of proof that nondisclosure is in the best interests of justice is on the State, not on the defendant. The State must argue against best interests of justice, if they are going to do so, at the time the defendant is placed on deferred. If that affirmative finding is made, then the defendant will be ineligible to receive automatic nondisclosure after the completion of the deferred (although he may be able to receive an Order of Nondisclosure upon petition and hearing.) If the State fails to show automatic nondisclosure is against the interests of justice at the time the defendant is placed on deferred, then the case will be automatically sealed, all other requirements being met.

Is automatic sealing available for 1st-time misdemeanor convictions?

No, 1st-time misdemeanor convictions are eligible for sealing under the new law but they are not eligible for automatic sealing.

Is automatic sealing available for felony deferreds?

No, automatic sealing is available only for those who complete a misdemeanor deferred and are otherwise eligible. Automatic sealing is not available for felony deferreds; you are still required to wait the 5 year waiting period and hire an attorney to file a petition, assuming you are otherwise eligible.